GA v. Durham Children’s Aid Society, 2020 CFSRB 50

CHILD AND FAMILY SERVICES REVIEW BOARD

BETWEEN:

GA Deborah Wall Applicant

-and-

Durham Children’s Aid Society Family & Children’s Services Niagara Respondent

DECISION

Adjudicator: Daniel McSweeney Date: May 21, 2020 Citation: 2020 CFSRB 50 Indexed As: GA v Durham Children’s Aid Society (CYFSA s.120)

INTRODUCTION/BACKGROUND

1This is an Application filed under section 120 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched.1, (the “Act”).

2On April 17, 2020, the Application was found eligible to proceed under s. 120(4)4 of the Act: The Applicant alleges the Respondent did not listen to their concerns when decisions affecting their interests were made. The Application also alleges the Applicant was not adequately heard with respect to concerns about services they were receiving. The Applicant is the adoptive mother of “J” (the “Child”). The Application outlined the following complaints:

• The Respondent refused to provide retroactive subsidy payments for the Child;

• The Respondent refused to provide subsidy payments after the Child’s 18th birthday; and

• The Applicant was not informed by the Respondent of the Child’s potential disabilities at the time of the adoption;

• The Respondent delayed medical attention to the Child after he allegedly was thrown against a wall by his birth mother.

3In its Summary Reply, the Respondent argued the following:

• There is no evidence of the alleged incident where the Child was thrown against a wall. Even if this occurred, the Respondent cannot be held responsible for the malfeasance of a third party;

• The Applicant had numerous opportunities to be heard in meetings, telephone calls, and e-mails with Respondent workers, supervisor, and a director;

• The CFSRB does not have the jurisdiction to compel the Respondent to provide funding; and

• The only remedy suggested by the Applicant (funding) falls outside the remedies outlined in section 120(7) of the Act as the Applicant did not make a formal complaint (Internal Complaints Review Process) with the Respondent; and ordering a financial settlement is not included in section 120(7).

THE LAW

4Section 120 (1) of the Act provides that, if a person has “a complaint in respect of a service sought or received from a society [and the complaint] relates to a matter described in subsection (4), the person who sought or received the service may decide” to make a complaint to either the society or the CFSRB.

5The Act defines “service” as follows:

“service” includes,

a) a service for a child with a developmental or physical disability or the child’s family

b) a mental health service for a child or the child’s family,

c) a service related to residential care for a child,

d) a service for a child who is or may be in need of protection or the child’s family,

e) a service related to adoption for a child, the child’s family or others,

f) counselling for a child or the child’s family

g) a service for a child or the child’s family that is in the nature of support or prevention and that is provided in the community,

h) a service or program for or on behalf of a young person for the purposes of the Youth Criminal Justice Act (Canada) or the Provincial Offences Act, or

i) a prescribed service; (“service”).

6A “parent” in the Act is defined as:

a) the person who has lawful custody of the child; or

b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to act, as the context requires.

7Section 120(4) states that: “The following matters may be reviewed by the Board under this section:

1. Allegations that the society has refused to proceed with a complaint made by the complainant under subsection 119(1) as required under subsection 119(2)

2. Allegations that the society has failed to respond to the complainant’s complaint within the timeframe required by regulation.

3. Allegations that the society has failed to comply with the complaint review procedure or with any other procedural requirements under this Act relating to the review of complaints.

4. Allegations that the society has failed to comply with subsection 15(2)

5. Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

6. Such other matters as may be prescribed.

8Section 15(2) of the Act states:

Service providers shall ensure that children and young persons and their parents have an opportunity to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

9Section 120(7) of the Act states:

After reviewing the complaint, the Board may,

(a) order the society to proceed with the complaint made by the complainant in accordance with the complaint review procedure established by regulation;

(b) order the society to provide a response to the complainant within a period specified by the Board;

(c) order the society to comply with the complaint review procedure established by regulation or with any other requirements under this Act;

(d) order the society to provide written reasons for a decision to a complainant;

(e) dismiss the complaint; or

(f) make such other order as may be prescribed.

10CFRB Rule number 22.1 indicates:

Within 20 days of determining eligibility, the CFSRB will:

a) make its decision based on the application and the response; or

b) decide to hold a hearing.

ANALYSIS

11Rule 22.1 of the CFSRB’s Rules of Procedure permits the CFSRB to decide an Application on the basis of the Application and Response. I have concluded that this is an appropriate case in which to do so given the materials submitted by the parties. I had before me the Application accompanied by approximately 9 pages of supporting correspondence; and the Response to the Application accompanied by approximately 34 pages of correspondence between the Applicant and the Respondent.

12The Applicant’s primary concern was to receive a retroactive subsidy from the Respondent, as well as a subsidy after the Child’s 18th birthday. As noted by the Respondent, and per section 120(7), the CFSRB does not have any jurisdiction to order a financial remedy of any kind. As such, the CFSRB cannot review these aspects of the complaint.

13In addition to concerns related to retroactive subsidy request, the Applicant expressed concern that she was not informed about the Child’s potential disabilities before adoption. The Respondent provided evidence that there was a “feedback session” between Respondent staff and the Applicant at the Grandview Children’s Centre on March 9, 2004 to inform the Applicant about the Centre’s involvement with the Child and their assessment of him.

14The Respondent also sent the Applicant, via Family and Community Services New Brunswick, with the Child’s medical history summary; observation report form from the Goodbye visit; parenting capacity assessment on the Child’s birth mother; and the Child’s Life Book.

15Furthermore, I note that the Applicant was not a stranger as she was the aunt of the birth mother and her letter to EB before the adoption which confirmed that the Applicant was aware of the birth mother’s charges, her lifestyle, and handicap.

16Based on the evidence before me, I find that the Applicant had an opportunity to be heard and was provided with evidence related to the Child’s disabilities before or around the time of adoption.

17Finally, the Applicant made allegations that the Respondent failed to obtain prompt medical assistance after an alleged incident where the Child was thrown against a wall while he was still in foster care. The Applicant failed to provide the Respondent with evidence (despite indicating that it was in her possession) of the incident despite being asked on several occasions to provide such evidence.

18The Respondent indicated that their review of the file identified an incident on November 2, 2002 where the Child was on a supervised access visit with his mother when she treated him roughly and raised her voice. There were no injuries or police involvement as a result of the incident.

19The Child was placed with the Applicant for adoption some 16 months later, on March 11, 2004. There is no evidence before me that, at the time of the alleged actions by the Respondent, that the Applicant was in receipt of services. As such, the provisions of section 120 do not apply to the Applicant.

20I find that the CFSRB does not have jurisdiction to address the subsidy issues raised on the Application. The Applicant was provided with information regarding the physical and mental concerns with the Child before and after the adoption. Finally, the CFSRB cannot review a complaint for a time where the Applicant was not in receipt of services.

ORDER

21The Application is dismissed in its entirety.

CONFIDENTIALITY ORDER

22Pursuant to Rules 9.3 and 9.4 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this Application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.